Argument recap: Another immigration case? Another argument about statutory interpretation and agency deference

Posted Wed, December 11th, 2013 3:17 pm by Kevin Johnson

Yesterday, the Court heard oral arguments in Mayorkas v. Cuellar de Osorio, a case raising a technical issue of statutory construction of the complex U.S. immigration laws.

The specific question presented by the case is whether a provision of the Immigration & Nationality Act, as amended by the Child Status Protection Act (2002), allows children of all family immigrant visa applicants (or only for some family immigrant visas) who turn twenty-one (“age out”) while waiting for a visa, to be issued a visa with their parent when the visas are issued. 8 U.S.C. § 1153(h)(3) provides that, for an “aged out” child, “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” The Board of Immigration Appeals has interpreted the statute to cover only certain, rather than all, family immigrant visas.

Assistant to the Solicitor General Elaine Goldenberg argued the case for the United States. Mark Fleming of WilmerHale argued the case on behalf of the respondents,

Much of the Justices’ questioning of both advocates focused on the precise meaning of the statutory language, especially the phrase “automatically . . . converted.” There also was some back and forth about the propriety of deference to the relevant Board of Immigration Appeals ruling, Matter of Wang (2009).

Taking the podium first, Goldenberg was quickly interrupted with a question from Justice Ginsburg about the harsh impact on the “aged out” child under the government’s interpretation. Justice Alito also seemed to have similar concerns. Later in the argument, Goldenberg admitted that “Congress’s overarching concern” was with “administrative delays” but failed to fully articulate how the respondents’ broader interpretation failed to fulfill that purpose better than the government’s rather wooden one.

Testing the government’s claim that the respondents’ interpretation would substantially disrupt the statutory visa scheme, Justice Breyer pressed for an estimate of the number of aged out children who may benefit from that interpretation. Goldenberg ultimately was forced to admit that the government “can’t quantify exactly how many [people], but we have reason to think that the number is quite large.” As a last resort, Goldenberg stated that the Court had recognized that “deference is particularly appropriate in immigration contexts.”

Fleming began his argument by dismissing the government’s claim that the statute is ambiguous. He further emphasized that the Court should exercise “a modicum of common sense” in deciding whether Congress would have delegated the question before the Court to the agency.

To better understand the operation of the statute, Justice (and former law professor) Breyer offered a hypothetical using his name (but Steven with a “v”), his brother’s (Charles), and his nephew. This moment added a bit of levity to the proceedings.

In questioning Fleming, Justice Kagan suggested that the statute was ambiguous and that deference to a reasonable interpretation of the government might be justified. Fleming argued that, in that circumstance, the government’s position was not rational.

The government’s rebuttal returned to the same ground generally covered in the arguments. Interestingly, Chief Justice John Roberts, who intervened little in the argument, during rebuttal appeared to be dubious of the government’s interpretation of the statute.

As the oral arguments in the Affordable Care Act case made clear, it is at best hazardous to predict how the Supreme Court will rule from oral arguments alone. While the government seems to be facing an uphill battle in this case, one never knows for sure. Nonetheless, it does seem clear that the Court, in deciding the case, will apply traditional tools of statutory construction and agency deference. This would be entirely consistent with the rather unexceptional nature of the Court’s immigration jurisprudence in recent years.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.